On September 20, 2012, the FTC published in the Federal Register (78 FR 57808) Rules and Regulations Under the Wool Products Labeling Act of 1939; Notice of proposed rulemaking. Comments are due by November 25, 2013. In this notice the FTC responds to the comments submitted in 2012, notes whether they are accepted, accepted with modification, or rejected. This stage of the regulatory process provides for public comment, but experience has shown that, after the initial round of comments, the regulatory body is, typicaly, fairly well settled on the text and is not expecting major new comments, merely refinements. However, in the case, of the definition of "very fine wools" the FTC concluded it lacks any basis to propose amendments to restrict the use of "Super" or "S" numbers or to require disclosures to prevent consumer deception." Therefore the FTC seeks comment on whether and how wool products are being deceptively marketed using the "Super" or "S" numbers, and on the most effective way to amend the Rules to address any such deception.
When the 2012 review of the Wool Rules was announced, the Cashmere and Camel Hair Manufacturers Institute ("CCMI") took the lead in drafting comments that were submitted, March 26, 2012, jointly by the American Manufacturing Trade Action Coalition, American Sheep Industry Association, Cashmere and Camel Hair Manufacturers Institute, the National Council of Textile Organizations, and the National Textile Association. Principal drafter of these joint comments was David Trumbull.
CCMI commented on the need for the rules, noting that:
From 2004, when we first began monitoring the U.S. market for suits, through 2006, our targeted enforcement program found that every suit we bought that had a Super S label was, in fact, mislabeled as to the average fiber diameter of the wool. We found widespread mislabeling in 2007 and 2008 as well. By 2009 the trade had been educated as to the substantial penalty for fraudulent misstating of wool fiber diameter, with the result that over the past three years we have found that Super S claims are made less frequently and that when they are made they can largely be relied on.
FTC concluded that there is a need for the Wool Rules. The FTC further concluded that the Wool Rules need to be modified to reflect the 2006 amendments to the Wool Act (the definition of cashmere and superfine wool). The Conforming Act's definition of "cashmere," itself taken from CCMI's definition, will be added to the Wool Rules. The FTC is taking the text of the Conforming Act as is, including ambiguities, because "none of the commenters provided evidence regarding consumer understanding of the "Super" or "S" numbers. Thus [sic], the Commission lacks any basis to propose amendments to restrict the use of "Super" or "S" numbers or to require disclosures to prevent consumer deception." The FTC seeks comment on whether and how wool products are being deceptively marketed using the "Super" or "S" numbers, and on the most effective way to amend the Rules to address any such deception.
Currently the Rules are unclear to many in the trade concerning hair of a cashmere producing goat that is not "cashmere" within the definition created by 15 U.S.C. 68b(6) because it is the coarse guard hair of the goat or otherwise does not meet the physical parameters set out in the section. It is our understanding that such goat hair, under the provisions of 15 U.S.C. 68a(a) may be labeled "wool" or "other fur fiber" or "goat fiber" under 15 U.S.C. 70b(g).
FTC replied that the Wool Act defines "wool" and the hair of certain animals including the cashmere goat, therefore, hair from a cashmere goat that does not meet the definition of "cashmere" must be labeled "wool."
[The] wool trade internationally includes other fine animal hair. The Annex I of the European Union Regulation N. 1007/2011 is more in conformity with usage in the trade in that it permits the use of the label "wool" in the cases additional fiber such as yak and guanaco ... to the extent that such is consistent with the Wool Products Labeling Act of 1939 we urge inclusion of those other "specialty wool" fibers. Similarly, the Rules do not now adequately provide for precise classification of fibers that have come into commercial use in recent years such as jangir.
FTC responded that such modifications would require an act of congress modifying the Wool Act.
The Conforming Act's definition already has a tolerance for deviation built-in. "80s" to refer to fiber of average diameter of 19.5 micron and, by defining "80s" as 19.75, has added 0.25 micron as a tolerance for deviation. We believe that Congress gave the Commission authority to adopt regulations regarding standards or deviations solely for the purpose of giving the Commission the ability to make minor adjustments necessary to reconcile the Conforming Act with the IWTO Code of Practice.
FTC stated there will be no tolerance.
We find that in the trade there is no complete agreement on how the S numbers apply in the case of blends, an important question on which the 2006 act appears to be indistinct. We also asked how the S number should be calculated in the case of a fabric with yarns of different fineness in the warp and filling, as suggested the numbers should be averaged. We suggest that the Commission conduct a thorough study, including an additional comment period and possibly industry workshop intended to develop a clearer consensus on this issue before promulgating a final Rule.
FTC declined to give guidance regarding blends. The FTC seeks additional comments regarding blends.
FTC declined stating that CCMI gave no evidence as to why this is the correct method. The FTC seeks additional comments regarding blends.
We believe it would be advisable to give precise indications as far as the testing methods to assure conformity with the 2006 amendments. We believe that ASTM D 2130 (corresponding to ISO 137 – projection microscope) is the correct testing method
FTC declined to mandate the test for fiber fineness, stating that CCMI's comments did not address why the IWTO test is reliable, let alone the only reliable test, and noted that the FTC Act permits marketers to use any competent and reliable method to substantiate claims.
CCMI raised several questions about ambiguities in the definitions of superfine wools. The FTC largely declined to rule, stating, "the record provided an insufficient basis for proposing changes" and seeking further comment.
The 2006 amendments to the Wool Act were intended to conform U.S. labeling law for superfine wool to the International Wool Textile Organisation ("IWTO") Code of Practice, therefore, the Commission, in modifying the Rules, should consult the most recent version of the IWTO Code of Practice.
The FTC rejected conforming the Wool Rules to the Code, stating:
- The FTC cannot go beyond what Congress did in the Act and Congress did not enact the current code.
- The definition of wool in the Code is not consistent with the definition of wool in the Wool Act.
NOTE that the FTC did not address CCMI's comment that S numbers should not be used to describe man-made fibers or animal fibers that are not "wool" within the meaning of the Wool Act.